The United States Environmental Protection Agency (“USEPA”) formalized its rescission of a 1995 policy that states that any facility that is considered to be a “major” polluter under the Clean Air Act (“CAA”) could never be categorized as a smaller polluter. The proposed rule was sent to the White House on February 25, 2019 for review.

The USEPA issued a memo in 2018 that iterated the concepts of the new proposed rule. The rule would give force of regulation to the memo. The amendments address when a major source can become an area source, and thus, become not subject to national emission standards for major sources under the CAA. A major source subject to the toughest standards may be reclassified as a smaller area source if it reduces its emissions of hazardous air pollutants below the major source threshold. This new policy eliminates the old “once in, always in” policy that regulated emissions sources since the enactment of the CAA.

Environmental groups and California challenged the policy change at the D.C. Circuit and asked the Court to vacate the rule arguing that it gives industrial facilities permission to turn off pollution controls and boost their toxic emissions.

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